Trade Secret Misappropriations

Trade Secret Misappropriation Lawyer in Boca Raton

Contact our Boca Raton Business Attorney

As the world of business becomes fiercer and also increasingly dependent
on advanced technologies with every passing generation, more and more
employers are relying solely on the trade secrets that make their products
or services unique to succeed. Keeping those secrets locked away, however,
is also becoming more difficult as digital information eliminates the
need for pen and paper. With just one click, a dishonest employee, a prying
competitor, or a persuaded third party can take your trade secret and
expose it to the rest of the world, or copy it for themselves.

Florida Uniform Trade Secrets Act

Like many states, Florida has adopted the Uniform Trade Secrets Act (UTSA)
in sections 688.001-688.009, Florida Statutes. Florida’s UTSA (FUTSA)
provides that it shall be applied and construed to effectuate its general
purpose to make uniform the law with respect to the subject of this act
among states enacting it. The FUTSA displaces conflicting tort, restitutory,
and other law of this state providing civil remedies for misappropriation
of a trade secret but does not affect:

(a) Contractual remedies, whether or not based upon misappropriation of
a trade secret;

(b) Other civil remedies that are not based upon misappropriation of a
trade secret; or

(c) Criminal remedies, whether or not based upon misappropriation of a
trade secret. The FUTSA sets forth and defines trade secrets and misappropriation,
as well as the available remedies for when it occurs.

Has economic value – real or potential – because it is not
readily available to others, who would use it for profit, through proper channels.

Has been subjected to reasonable efforts to keep it a secret.

Is substantial and defined, not vague and unusable.

FUTSA considers that misappropriation has occurred when:

Someone uses improper means to obtain a trade secret.

Someone uses the trade secret’s information when they know improper
means were used to obtain it.

Factual support can be used to prove that improper means were utilized.

The definition of “improper means” in this legislation includes:

Theft

Bribery

Misrepresentation

Breach of duty to maintain secrecy

Espionage, physical or digital

Common Cases of Misappropriation

For the most part, cases centered on potential trade secret misappropriation
involve an employer accusing a former employee of using improper means
to gain economically valuable trade secret information and using it to
compete with the former employer or making the trade secret information
available to a competitor. On the other hand, the FUTSA can be abused
in an effort to stifle completion or to obtain trade secret information
from a competitor through the assertion of a claim under the FUTSA. Under
the FUTSA,

"if a claim of misappropriation is made in bad faith, a motion to
terminate an injunction is made or resisted in bad faith, or willful and
malicious misappropriation exists, the court may award reasonable attorney’s
fees and costs to the prevailing party."

Initially, actions under the FUTSA focus on whether or not the allegedly
taken information qualifies as a trade secret, and whether or not that
information was actually used to someone else’s advantage. The party
asserting a claim under the FUTSA has the burden of specifically identifying
the trade secret at issue so the opposing party knows what claim it is
defending.

For example, customer lists are a fairly typical subject of a trade secret
misappropriation claim. In the past, such lists would be difficult to
create and maintain, and could be locked away in a drawer or cabinet.
Based on the ability to utilize technology to obtain information, the
names and interests of potential customers is widely available through
the internet, capable of being collected by just about anyone and with
little effort. Whether a customer list is or is not a trade secret depends
on the facts.

Customer lists have been considered trade secrets if the list:

Took great effort, time, and finances to compile.

Is actually an intentionally filtered portion of a larger list.

Includes information kept from the public.

Is largely comprised of actual past clients, not prospective clients.

Remedies for Misappropriation

Where a trade secret exists that has been misappropriated, there are two
primary remedies available under the FUTSA.

Injunctions: The court may prevent the defendant from continuing to use the trade secret,
or it may prevent them from continuing to share the trade secret to others.
Interestingly enough, this can stop a party from publishing information
freely, which can be seen as a conflict of the Constitution’s First
Amendment rights.

Monetary damages: If the plaintiff can show that they have lost profits due to a misappropriated
trade secret, they may be rewarded the actual amounts lost. If the defendant
has also seen an increase in profits since the improper means were utilized
to gain a trade secret, the court can award that actual profit to the
plaintiff. Additionally, punitive damages equal to up to twice the amount
of total actual damages can be rewarded if the misappropriation was willful
or malicious.

Need a Business Litigation Lawyer?

Whether you believe your trade secrets have been misappropriated through
improper means or if you are the one being accused of such actions, your
business, your finances, and your reputation could all be on the line.
Do not leave matters up to chance by stepping into the legal arena alone
and unprepared. Let me, Boca Raton Business Attorney Gregg H. Glickstein,
handle your case for you. With
more than 30 years of experience and a prestigious
AV® Preeminent™ Rating by Martindale-Hubbell®, I know I can find the right solution for you, and you know you can trust in me.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.